Introduction

All the land in all of Kenya is owned by the people in their various respective capacities as given in this excerpt from Article 61 from Chapter 5 - Land and Environment, of the Constitution of Kenya 2010:

61. (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.

The National Land Commission NLC, is charged by the people to protect their individual and collective interests in land matters. Therefore, as a Commission, the NLC must "......(a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism." (Article 249).

The New Constitution has sought to give clarity to the whole question of land use and ownership vis-a-vis individual and collective rights of the people of Kenya. The often emotive and confrontational issues of land use and ownership in Kenya are expected to be the subject of comprehensive deliberations years after the enactement of the New Constitution. These reviews aim - through both short and long-term measures by way of detailed legislation - to address, streamline and give clarity to the very many issues that surround land involving its classification, access, use, registration and ownership:

60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principals— (a) equitable access to land; (b) security of land rights;(c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

As an independent Commission, the NLC is best-placed to implement the principals and policies in the article 60 above governing all public and private land. Were this exercise to be left entirely to the National Executive, chances are that it would be dogged by endless bickering and delays as politics would invariably find its way into the mix.

And true to form, this prediction came to pass soon after the Cabinet was constituted in April 2013; on the one hand, the Cabinet Secretary for Land, Housing & Urban Development, and the Land Commission on the other, became immersed in a supremacy contest (over who has what functions and powers to do what) for the better part of 1 year, forcing the NLC to seek the Supreme Court's Advisory opinion on separation of powers and functions between it and the Ministry, thanks to the Constitution's Article 163. (6) in Chapter 10 - Judiciary, Part 2 - Superior Courts:

163. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

Upon receipt of the petition, the Supreme Court first attempted the way of reconciliation, "........ for the parties to engage one another in good faith, and to seek mutual understanding....... . Prior to the conduct of a hearing, the Court allows a 90-day interlude during which the parties may undertake a constructive engagement towards reconciliation and a harmonious division of responsibility."

However, the 90-day period (to July 2015) that the Court allowed for the parties to work out their differences elapsed without any meaningful resolution, and the matter was forced into full hearing.

The NLC had basically sought specific clarity on nearly two dozen questions on land matters it felt ought to be fully in its domain to manage and to administer effectively, and to be fully independent of the Executive by having staff, assets, and funding exclusive to it. Key among these were:

i) are Land Registrars (recorders of titles) and Land Surveyors answerable to the NLC, or to the Cabinet Secretary of the Ministry?

ii) what meaning is to be assigned to the words “to manage”, and “to administer” public land, unregistered trust land, and unregistered community land by virtue of Articles 62(2), 62(3), 67(2)(a) and 67(3) of the Constitution of Kenya; and Sections 5(1)(a) and 5(2)(e) of the National Land Commission Act No. 5 of 2012 [NLC Act]?

iii) which functions that were previously performed by the Ministry, before the creation of the NLC, have now been transferred to the NLC?

iv) should the Ministry relinquish the land-tax function, roles, records and powers to the NLC; .......?

v) is land registration a function of the NLC, or the Ministry?

vi) is it practical that the NLC be charged with the task of creating registration units, registration sections, or registration blocks; of prescribing nomenclature for land titling; of regulating rectification of land registers by Registrars; and of annually reporting to the President and Parliament as regards the progress made in the registration of title in land when the NLC is not the agency mandated to control the process of registration of land?

vii) is the Ministry obliged to transfer to the NLC all property and assets of the departments whose functions have now, by law, been transferred to the NLC; .......?

viii) which agency has the mandate to administer and manage dealings in private land?

On its part, the Court felt it necessary to "rescale" the 23 questions sought by the Commission to just the one question, that is, "What is the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand – in the context of Chapter Five of the Constitution; the principles of governance (Article 10 of the Constitution); and the relevant legislation?”

The Supreme Court delivered its opinion on the 2nd of December 2015. In the very extensive opinion, the Court was keen to emphasis its earlier view that the Commission and the Ministry are required to work in harmony by way of, "...... reconciliation and a harmonious division of responsibility.", and that it was impossible to demarcate their independence:

309. ....... the allocation of discrete functions to the one or the other is not possible, or indeed necessary........

Upon examination of the historical issue of land injustices, it also noted the special place of the NLC saying:

285. The Court, thus, has to take into account the historical background of land issues in Kenya, that necessitated the establishment of the NLC, and the mischief that the NLC was intended to cure in the allocation of public land.

However, there being separation of land administration from land registration, the Court was categorical that although the Commission has extensive roles in land administration under the law (specifically the Land Registration Act), it has no authority to register titles:

289. The foregoing sub-Section separates the role of “land administration” from “registration”, notwithstanding that the term “land administration” has a wider meaning under the Act, which suggests the inclusion of functions of registration of title. As implementation is of the essence, we are of the view that a definition on its own, does not confer any definite category of power; only by a substantive provision in the relevant Act, can a specific head of power be vested upon any agency. As observed in para. 287, the position is that, under the Land Registration Act, the NLC has no power to register title documents.

The Court however acknowledged that the Commission plays a part in the process leading to registration:

310. The NLC has a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law confers upon it the power to register titles in land. The task of registering land title lies with the National Government, and the Ministry has the authority to issue land title on behalf of the said Government.

The reader should note that the process leading to the Opinion revealed contradictions in the Acts that touch on Land, prompting the Court to advise the relevant agencies concerned with law reform to do something about it:

312. As already noted herein, the various statutes relating to land are not in all cases consistent among themselves; and in some cases they have been framed with imprecision, and without a clear reflection of the relevant principles of the Constitution. We recommend that the complete set of land-relatedstatutes, be placed before the Honourable the Attorney-General, and before the Kenya Law Reform Commission, for a detailed professional review, in the context of this Advisory Opinion.

The Chief Justice added his voice to the Opinion in choosing to highlight the importance of full and comprehensive public participation that has been lacking in the post-CoK 2010 reforms being undertaken in the statutes governing land in Kenya.

Moving on, the National Government will largely concern itself with policy on all matters touching on land and, in order to implement the said policies, prepare and present relevant Bills in the Houses of Parliament:

60. (2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

The overhaul of land laws must not only be thorough, it must be preceded by comprehensive review efforts:

68. Parliament shall— (a) revise, consolidate and rationalise existing land laws; (b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land; (ii) to regulate the manner in which any land may be converted from one category to another; (iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (iv) to protect, conserve and provide access to all public land; (v) to enable the review of all grants or dispositions of public land to establish their propriety or legality; (vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter.

Clearly, as a political institution, Parliament will always be a key and active player in the entire process to review the policies and legislation on land for the obvious reason that land remains embedded at the heart of the social, economic and political lives of the Kenyan people.

The whole issue of land in Kenya is addressed under the Public Land link.